Filed 10/19/17 P. v. Continental Heritage Insurance Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and an order of the Superior Court of San Diego County, William S. Dato and Timothy M. Casserly, Judges. Dismissed.

Law Office of John Rorabaugh, John M. Rorabaugh and Crystal L. Rarabaugh for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, and Walter J. De Lorrell III, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

Continental Heritage Insurance Company (Continental) appeals from a summary judgment forfeiting a bail bond and from an order denying Continental's motion to vacate the summary judgment. We conclude the appeal is untimely as to the summary judgment. In addition, Continental has abandoned the appeal as to the order denying the motion to vacate the summary judgment because Continental's opening brief does not raise any specific arguments regarding the order. (County of Riverside v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 20, 27, fn. 4.) We, therefore, dismiss the appeal.

II

BACKGROUND

Continental posted a $150,000 bond to release a defendant from custody. On January 12, 2015, the defendant failed to appear for a court hearing and the court ordered the bail bond forfeited. The following day the superior court clerk mailed to Continental the notice of the forfeiture. Under Penal Code[1] section 1305, subdivisions (b)(1) and (c)(1), the court had to vacate the forfeiture and exonerate the bail bond if the defendant appeared in court within 185 days after the court clerk mailed the notice (appearance period), or by July 17, 2015. (People v. Financial Casualty & Surety, Inc. (2016) 2 Cal.5th 35, 40, 42 (Financial Casualty).)

On July 15, 2015, two days before the appearance period was to end, Continental filed a motion under section 1305.4 to extend the appearance period by 180 days. On August 7, 2015, the court granted the motion and ordered the appearance period extended to January 13, 2016.[2] However, the defendant did not appear in court again until January 27, 2016.

On March 4, 2016, the court entered summary judgment on the forfeiture under section 1306, subdivision (a). On March 7, 2016, the court clerk mailed to Continental the notice of entry of the summary judgment.

On April 7, 2016, Continental filed a motion to vacate the summary judgment and exonerate the bail bond. Continental argued its performance under the bail bond was excused because law enforcement officers prevented Continental's agents from arresting the defendant by siding with the defendant's mother after the agents located the defendant at the defendant's mother's home and the defendant's mother refused to allow the agents into her home to arrest the defendant. The People opposed the motion, arguing Continental had not established entitlement to the requested relief because the law enforcement officers had no obligation to assist the agents and Continental's evidence failed to show the officers affirmatively prevented the agents from arresting the defendant.

On May 20, 2016, the court denied the motion to vacate the summary judgment. On August 1, 2016, Continental filed a notice of appeal from the summary judgment and from the order denying the motion to vacate the summary judgment.

III

DISCUSSION

A

Continental initially had 60 days after the date the court clerk served Continental with the notice of entry of the summary judgment, or until May 6, 2016, to file a notice of appeal from the summary judgment. (Rule 8.104, subd. (a)(1)(A).) The filing of Continental's motion to vacate the summary judgment, assuming the motion was valid,[3] extended the time to appeal "until the earliest of: [¶] (1) 30 days after the superior court clerk, or a party serves an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move—or motion—is filed; or [¶] (3) 180 days after entry of the judgment." (Rule 8.108(c).) Here, the earliest of these time periods was 90 days after Continental filed the motion to vacate the summary judgment, or July 6, 2016. Since Continental did not file its notice of appeal from the summary judgment until August 1, 2016, the appeal is untimely and we have no power to entertain the appeal. (Van Beurden Insurance Services, Inc. v. Customized Worldwide Weather Insurance Agency, Inc. (1997) 15 Cal.4th 51, 56; The Inland Oversight Committee v. City of Ontario (2015) 240 Cal.App.4th 1140, 1143–1144.)

B

Nonetheless, Continental contends it may challenge the summary judgment at any time because the summary judgment was void. Continental bases this contention on its assertion the court misapplied section 1305.4 and mistakenly failed to give Continental the maximum possible appearance period extension, which would have been 180 days from the date of the extension order, or to February 3, 2016. (Financial Casualty, supra, 2 Cal.5th at p. 43.) Had the court given Continental the maximum possible extension, Continental would have been entitled to exoneration of the bail bond because the defendant appeared in court before this date.[4]

Assuming, without deciding, the court had erred in the manner asserted, which is not apparent from the record, the error would not have voided the summary judgment. A judgment is void when a court lacks fundamental jurisdiction, meaning it has no authority over the subject matter or the parties, or it lacks any power to hear or determine the case. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 (Kabran); People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors).) " ' "[A] claim based on a lack of ... fundamental jurisdiction[] may be raised for the first time on appeal. [Citation.]" ' [Citation.] Likewise, 'a collateral attack on a final judgment may be made at any time when the judgment under challenge is void because of an absence of "fundamental jurisdiction." ' " (Kabran, supra, at p. 339, italics omitted.)

Conversely, a judgment is voidable, not void, when a court has fundamental jurisdiction, but acts in excess of its jurisdiction by violating procedural requirements, ordering unauthorized relief, or failing to act in the manner prescribed by the law. (Kabran, supra, 2 Cal.5th at pp. 339–340.) "Because a court that acts in excess of jurisdiction still has 'jurisdiction over the subject matter and the parties in the fundamental sense' [citation], any such act is 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time' [citation]." (Id. at p. 340, italics added.)

Here, the court had fundamental jurisdiction because it had the power to enter the summary judgment (§ 1306, subd. (a)) as well as the authority over the parties and the subject matter. (American Contractors, supra, 33 Cal.4th at p. 663 [" 'Under the Penal Code, a court has jurisdiction over a bail bond from the point that it is issued until the point it is either satisfied, exonerated, or time expires to enter summary judgment after forfeiture.' "]; People v. Aegis Security Ins. Co. (2005) 130 Cal.App.4th 1071, 1076.) To the extent the court may have misapplied section 1305.4, subdivision (a), and given Continental a shorter extension of the appearance period than the court intended, the mistake would have only been an act in excess of the court's jurisdiction and would have only rendered the summary judgment voidable, not void. Accordingly, the mistake does not obviate the untimeliness of Continental's appeal of the summary judgment.

IV

DISPOSITION

The appeal is dismissed. Respondent is awarded costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.